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Saturday, 26 April 2008

IMPUNITY FOR ITS ARMED FORCES, CASTE DISCRIMINATION, EXTRA-JUDICIAL KILLINGS AND TORTURE AT THE UN

Sikh delegates (Manmohan Singh Khalsa, Ranjit Singh Srai,Prithpal Singh and Amrik Singh Sahota, OBE) with Dr Charles Graves of Interfaith Interfaith (NGO affiliated to UNESCO) on the sidelines of India's UPR at the United Nations in Geneva on 10 April 2008

India's Human Rights Record: Myths and Reality Exposed

India's Solicitor General reacted angrily to repeated assertions made at the UN in Geneva that Indian armed forces have carried out human rights violations with impunity, calling them "totally off the mark". Given the largely ritualistic diplomatic niceties of the occasion - India's Universal Periodic Review (UPR) under the new Human Rights Council procedures held at the UN in Geneva on 10 April 2008 - this was a conspicuously odd reaction which brought laughter from journalists and NGO representatives who sat in on the session.

Indeed there was a series of grave human rights issues raised by a number of states in the three hour session which saw the Indian delegation having to respond in what most observers saw as a shameless attempt to hide India's appalling human rights record behind the spin of claiming complete constitutional and legal safeguards which it protect the vulnerable. In essence it was the stark difference between the theoretical legal position and the actuality of systematic abuses and impunity that will characterise the world's assessment of India's human rights situation.

Attacks on Minorities

Many states, especially the USA and the UK, asked what India was doing to stop attacks against religious minorities. Whether Muslims, Sikhs or Christians there have been numerous mass attacks on them in contemporary India where the state has been at best complicit in the abuses if not directly responsible for them. India's unwillingness to punish the guilty remains a serious problem which has been noted by the international community. India's own written submission to the UPR makes not a single reference to the anti-Sikh pogroms of November 1984 in which 10,000 Sikhs were killed in three days of genocide, the massacre of thousands of Muslims in Gujarat or the recent attacks on Christians in Orissa, despite official findings by formal government enquiries that cited the involvement of government officials in the mass killings of Sikhs in 1984 and Muslims in 1993 respectively. The very same submission claims "India's approach towards protection and promotion of human rights has been characterised by a holistic, multi-pronged effort" which is based on a constitution in which "fundamental freedoms are guaranteed without discrimination to all citizens".

In relation to abuses (primarily systematic extra-judicial killings and secret cremations) against the Sikhs in Punjab, Human Rights Watch's formal submission to the UPR called for the guilty to be punished and condemned the policy of impunity. It noted how India's National Human Rights Commission has refused to order an investigation in to the killings and has restricted its interest to whether "proper procedures were not followed by state authorities in cremating unidentified bodies". India's representatives offered no response to the NGO's call for action.

Use of Torture, Extra-judicial Killings and Impunity

Several states questioned why India - some 11 years after India signed the UN Conventional Against Torture it has still not managed to ratify the treaty or agree to be bound by the terms of its Optional Protocol. New Delhi's representative prompted derision when she asserted that ratification was being "actively pursued" by the Government of India. The widespread use of torture in India was glossed over by India's delegation even though the UN is fully aware of India's refusal to agree formal requests by the UN Special Rapporteur on Torture in 1993 and 2007 to visit India. India has also not agreed to formal requests made in 2000, 2005 and 2006 by the UN Special Rapporteur on Extra-judicial, Summary or Arbitrary Executions. In a blatant mis-representation of the position, India's Solicitor-General intervened to claim that India had in fact acceded to every request made by UN Special Rapporteurs.

The significance of India's approach to the use of killings and torture should not be lost on anyone. Human Rights Watch, in its submission to the UPR noted that "security forces in India have been responsible for abuses such as extra-judicial killings, disappearances and torture, especially in Punjab and Nagaland in the 1980s, and currently in Jummu and Kashmir, Assam and Manipur, and in states where there is a Maoist insurgency". They further state that "impunity is a major problem in India; serious crimes perpetuated by security forces are rarely investigated or prosecuted".

Religious and Caste Discrimination

India's representatives, without embarrassment, stated that India does not see caste discrimination as racism when confronted with widespread criticism of systematic caste-based discrimination in India.

When the US representative spoke of evidence of restrictions on freedom of conscience, they retorded that freedom of religion was a pillar of the Indian Constitution. Unsurprisingly they made no reference to the decades-long opposition of Jains and Sikhs (who refused to accept the document when adopted in 1950 and ever since) to their being classed as Hindus in Article 25 of the Constitution. Explaining the rationale for this provision, India's Supreme Court declared in a judgement in 2005 as follows:

"The so-called minority communities like Sikhs and Jains were not

treated as national minorities at the time of framing the Constitution.

Sikhs and Jains, in fact, have throughout been treated as part of the

wider Hindu community which has different sects, sub-sects, faiths,

modes of worship and religious philosophies. In various codified

customary laws like Hindu Marriage Act, Hindu Succession Act, Hindu

Adoption and Maintenance Act and other laws of pre and post-

Constitution period, definition of 'Hindu' included all sects, sub-sects of

Hindu religions including Sikhs and Jains. "

Denial of Self-Determination: State Policy in defiance of the UN Covenants

India's submission made repeated reference to "internal" conflicts as purely law and order (and terrorism) concerns, without addressing the underlying causes of those conflicts. It offered nothing in terms of responding to the UN's earlier recommendations that it establish political dialogue with the minorities involved. The UN Human Rights Committee, a separate body which monitors the compliance of states with the 1966 International Covenant on Civil and Political Rights (ICCPR) has suggested dialogue but there has not been any.

India has in fact taken the opposite approach based on a 'Reservation' it made when acceding to the ICCPR to the effect that the right of self-determination of peoples and nations (Article 1 and a foundation of the ICCPR) is not considered to be applicable to India. The UN Human Rights Committee, which has stated that self-determination is a human right the denial of which leaves other rights susceptible to open abuse, in 1997 formally requested India to withdraw that 'Reservation' but it has failed to do so. In fact, India's latest formal report to that Committee was due in 2001 and still has not yet been submitted. Sikhs, Kashmiris, Nagas, Assamese, Manipuris, Bodos and other national groups can draw their own conclusions for what this attitude means for them.

A Challenge to the UN

The UN's recommendation that India's notorious Armed Forces Special Forces Act, (which effectively guarantees impunity by stipulating that central government permission is needed before security personnel can be prosecuted for abuses) be repealed was raised by a number of states including the UK, Canada, Germany. India's delegation rejected the move by insisting that the draconian provisions of the Act were sanctioned by India's Supreme Court and that the international community need not be concerned as all members of the armed forces are given lessons in how to conduct themselves! That response perhaps epitomised a session which saw many in the human rights community question the effectiveness of the new UPR procedure which apparently allows violators of human rights to simply hide behind rhetoric and falsehoods. It will be a challenge for the UN to redress the balance between victims and perpetrators of state terrorism within its review processes.

Sikh Reaction

The UPR session was attended by Sikhs from the Council of Khalistan and Dal Khalsa International who took the opportunity to brief journalists and a number of NGOs about the reality of the humanitarian situation in India, whether in terms of collective or individual human rights. They also met with a representative of the Office of the UN High Commissioner for Human Rights and urged the UN to take concrete steps to hold India account for its past as well as its continuing violations. Amrik Singh Sahota, OBE deplored India's brazen contempt for human rights and said that the international community would not be fooled by India' s preposterous claims made at the UPR. Manmohan Singh Khalsa expressed satisfaction at seeing India's representatives have to squirm in front of the world's representatives in their futile attempt to hide the record of a state which has become an acknowledged serial violator of human rights. India's representatives had ironically reminded decision makers why it was not only inappropriate but also dangerous to entertain India's claims to a permanent seat at the UN Security Council.